Perverting Informed Consent: The South Dakota Court Decision

Informed consent is one of the cornerstones of health-care law and its basic principles have been well-established for decades. Informed consent law reflects the fundamental notion that every competent adult has a right to make the ultimate decisions about her healthcare that will affect her life prospects. A single driving goal animates informed consent law—respect for patient autonomy. Informed consent law preserves patient autonomy by protecting the patient’s bodily integrity and self-determination.

Canterbury v. Spence, a leading case on informed consent, set forth the key principle that “it is the prerogative of the patient” to decide “the direction in which his interests seem to lie.” Thus, the doctrine of informed consent compels the disclosure of accurate medical information consistent with the expert knowledge of the medical community.

This rule ensures that patients receive sufficient information to make their own decisions about whether to consent to medical treatment. Informed consent law’s long-established principles have been perverted in the context of abortion legislation. Anti-choice laws claiming to ensure well-informed decisions for women in fact misuse informed consent terminology to further goals antithetical to the imperatives animating informed consent law.

In an en banc opinion,the Eighth Circuit recently upheld South Dakota’s mandate that physicians inform women seeking abortion care that “an increased risk of suicide ideation and suicide” is a known risk of the abortion procedure. Responding to the Eighth Circuit’s holding, South Dakota Attorney General Marty Jackley declared, “Today’s decision supports the Legislature’s goal of encouraging women seeking an abortion to make informed and voluntary decisions.” Although this statement invokes notions of patient autonomy, South Dakota’s abortion law actually turns on its head informed consent law’s respect for patient self-determination through the provision of accurate, relevant information. As Jennifer Keighley has summarized, South Dakota’s claims about abortion and suicide risk are scientifically dubious. While Planned Parenthood v. Casey permitted abortion-specific informed consent laws, it emphasized that only “truthful, nonmisleading” information would be constitutionally permissible. But the weight of medicalevidence indicates that South Dakota’s legislation is untruthful and misleading. The Eighth Circuit’s decision to uphold medically-inaccurate information is not surprising, however, given that a similarly ideologically divided court previously upheld South Dakota’s requirement that physicians inform abortion patients “that the abortion will terminate the life of a whole, separate, unique, living human being”—hardly the unbiased information demanded by informed consent doctrine.

South Dakota is not alone in its misuse of traditional medical principles in regulating abortion care. State abortion laws are rife with mis-information and shaming rituals masquerading as protections of a “woman’s right to know.” For example, efforts to mandate clinically unnecessary ultrasounds have also been enacted under the guise of protecting abortion patients’ right to information, even though mandatory ultrasounds impose a medical procedure in violation of a patient’s right to refuse treatment protected by informed consent law.

These abortion regulations belie a deep suspicion of women as medical (and moral) decision-makers. Their proponents claim to follow the general principle of protecting patients’ interests in informed decision-making, but they seek to apply that principle differently to women seeking abortion care. South Dakota’s legislation and other similar anti-choice “informed consent” laws aim not at preserving women’s autonomy, but at imposing the government’s normative views about what decisions women should make.

Numerous anti-choice laws—like South Dakota’s—exploit informed consent doctrine to further goals antithetical to the notion of autonomy that these laws pretend to promote. South Dakota’s disingenuous assertions about protecting women’s well-being by mandating mis-information mask its true purpose—to thwart access to abortion and discourage women from seeking abortion care. South Dakota thus ignores the lesson learned long ago within the law of informed consent—that the patient should have the prerogative to determine for herself where her best interests lie.

Funny how informed consent suddenly becomes unimportant when health-care “professionals” don’t want women to have abortions. Then they avoid giving information that may be beneficial to the women’s health.